The fortunes of a local woman took a disastrous turn when she loaned her car to her son so he could take her granddaughter to school.
Her son was arrested on suspicion of credit-card fraud in Oro Valley and police seized the woman’s orange 2005 Mini Cooper, which she said in court documents she needed to drive to her $14-an-hour job at Red Lobster.
She hired a lawyer — the court does not provide lawyers in civil matters — to challenge the seizure and subsequent forfeiture proceedings. Authorities agreed on July 7 to return her car, but first she had to pay $2,000 into the Pima County Anti-Racketeering Fund, with $1,500 going to Oro Valley police and $500 to the County Attorney’s Office.
In her case and four others recently settled in Pima County, prosecutors decided to return the vehicle, implying it was not subject to forfeiture. So why did the owner have to pay?
The agreements were reached through confidential negotiations, not by a judge’s ruling in open court, so the public record does not provide a clear answer to that question.
Arizona’s forfeiture laws deter vehicle owners from allowing their property to be used in criminal activity, Chief Deputy County Attorney Amelia Cramer said.
But defense attorneys and civil rights advocates describe the payments as one more strand in a web of unconstitutional laws designed to give advantages to prosecutors as they face organized-crime defendants. They say forfeiture laws frequently ensnare regular people, who must hire a lawyer to navigate forfeiture proceedings and overcome the presumption of guilt inherent in such cases.
Because they have to hire an attorney — and they might end up having to pay the state’s legal fees as well — they risk losing more than they stand to gain.
“Is it worth spending legal fees that might amount to the value of the car to get the car back?” asked defense lawyer Jeffrey Rogers, who represented a client in one recent settlement.
People who file claims over a seized vehicle face another daunting dilemma, Rogers said. If they lose, they are on the hook both for their own attorney’s fees and the state’s costs.
“On the other hand, the complete unfairness of the statute does not force the state to pay the attorney’s fees of the claimant if the claimant prevails,” Rogers said.
FUNDS GO TO LAW ENFORCEMENT
Forfeitures take place under state laws that let authorities seize property used in criminal activity or purchased with money that comes from criminal activity, Cramer said. Those funds are then given to law enforcement.
Authorities also must be wary of a common practice by criminal organizations to register vehicles under the names of straw owners in an attempt to avoid forfeiture, she said.
If a vehicle owner is the family’s sole breadwinner, prosecutors may settle “for humanitarian reasons,” she said.
In her annual list of “significant accomplishments,” County Attorney Barbara LaWall said her office’s forfeiture unit received $367,500 in 2015, $550,000 in 2014 and $477,000 in 2013. Detectives working with a Drug Enforcement Administration task force seized $7.5 million in property during those years.
The County Attorney’s Office, which reported 394 seized vehicles submitted for forfeiture by law enforcement in 2014 and 275 in 2015, does not track how many vehicle seizures are challenged or how many vehicles are returned to their owners.
Anecdotal evidence from weekly reviews of court records by the Star indicates many vehicle forfeitures are unchallenged.
LOANED CARS SEIZED
Arizona’s “innocent third-party defense” protects people who could not reasonably be expected to know their vehicle would be used in a crime.
Cramer said there were no innocent third parties among the five recent settlements. In four of the cases, owners said they loaned their vehicles to their children or friends and had no knowledge of any crimes.
Attorney Rogers, who represented a man who loaned his 2002 BMW to a friend arrested for selling drugs, said the case was typical and ended with a compromise in which his client agreed to pay $1,500 to the multi-agency Counter Narcotics Alliance and $500 to the County Attorney’s Office, as well as $190 in storage and towing fees.
Officers seized a 2013 Toyota Corolla in August 2015 at an illegal marijuana grow site in Tucson. The owner of the car said he let his son, who was arrested at the grow site, use the car, but that he had no knowledge of the grow site. His son’s name was on the registration, but the father said his son did not pay for the car in any way.
Prosecutors agreed to return the car in February in exchange for $3,431 and $316 in storage and towing fees. The Counter Narcotics Alliance received $2,573 and the County Attorney’s Office received $858.
In another case, defense lawyer Kristi Bang-Simon said her client, who works for the Mexican government combating corruption in Sonora, was horrified to learn his vehicle may have been used in a criminal enterprise after he loaned it to a friend.
His 2014 Volkswagen Passat was seized in September. Prosecutors agreed to return the car in June in exchange for $2,000, with $1,500 going to Oro Valley police and $500 to the County Attorney’s Office.
In the fifth case — the only one where the owner was accused of a crime — Brandon Moore’s truck was seized in August when he was arrested for robbery and drug possession. He later pleaded guilty to a shoplifting charge and paid $1,500 to Tucson police and $500 to the County Attorney’s Office in exchange for the truck.
Forfeiture laws originally offered prosecutors a “way to go after drug traffickers, racketeers, and organized crime,” Rogers said. But their expanded use has made them the subject of controversy.
A Pinal County woman and the ACLU are arguing in U.S. District Court that county authorities violated her constitutional rights by seizing a truck she loaned to her son, who was accused of stealing car parts.
Also, civil asset forfeiture reform efforts appear to be gaining steam at the state Legislature and in states across the country.
State Rep. Bob Thorpe, a Republican from Flagstaff, proposed a bill in the most recent legislative session that would have required a criminal conviction before authorities could seize property. That’s what New Mexico did last year.
“My concerns primarily are with people who don’t fit the RICO definition, people who are not racketeers, who are not drug cartel members, things like that,” Thorpe said at a March 24 hearing at the House Government and Higher Education Committee.
Thorpe’s bill did not become law, but the hearing showed support for reform coming from odd bedfellows like the progressive ACLU and libertarian Goldwater Institute.
In recent years, legislatures in California, Minnesota, Montana, New Mexico, North Carolina, and Vermont, as well as New Mexico, have approved higher thresholds for asset seizure.
